On 15th January, the death sentence handed down to nine individuals by the Sessions Judge in Rayagada for the 2016 murder of three family members on suspicion of witchcraft was commuted by the Orissa High Court. The decision was pronounced by a Division Bench of Justices Sangam Kumar Sahoo and Radha Krishna Pattanaik. The court stated that the reformation of the convicts could not be ruled while reducing the sentence to imprisonment until the end of natural life.
“We should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. It is for the prosecution and the Court to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated,” the bench observed and highlighted that the informant is the only eyewitness to a portion of the crime after reviewing the available evidence.
The counsel representing the appellant contended that her testimony should be treated suspiciously since she is an “interested witness” and a close relative of the victims. However, the court was not persuaded and countered, “We are not inclined to accept such submission as ‘related’ is not equivalent to ‘interested.’ The witness may be called interested only when he or she has derived some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eye witness in the circumstances of a case, cannot be said to be interested.”
Furthermore, it clarified that because the informant was the only person to see the incident, it does not necessarily mean that her evidence should be disregarded or that her sincerity should be questioned. “Neither the legislature (Section 134, Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction,” the bench conveyed.
The court was also persuaded by the informant’s explanation of the delay in filing the FIR (First Information Report) and mentioned, “Since it was a small village consisting of only 25 houses and she was staying in the house of the Samiti member, she can be said to be under the close watch of not only the appellants but also the Samiti member who appears to have closeness with the appellants. We are of the view that the explanation furnished by P.W.1 regarding delay in lodging the F.I.R. is quite satisfactory and plausible.”
The appellants urged that the informant had merely observed part of what transpired within the cowshed but did not know what subsequently happened to the deceased as their remains were never found. Nonethless, the court rested its verdict on other judgments of the Supreme Court holding that corpus delicti or dead corpses need not in all cases be recovered to convict and relied upon multiple judgments for the same.
Considering the foregoing precedents, the court further observed that once it is apparent that the deceased persons were removed from the cowshed one after another and that the informant was later made aware of the fact that they were murdered, above all, they were not seen alive thereafter, it falls upon the appellants to account, under Section 106, how they met their demise.
Besides the aforementioned, the court shed light on the actions of the appellants which included asking the informant to take a bath in a spring after killing human beings as they could not return home without cleaning themselves but also made an extrajudicial confession about committing the horrific murder. The bench determined it to be pertinent based on Section 8 of the Evidence Act.
Therefore, the appellants were convicted of offenses under Sections 342 (wrongful confinement), 364 (kidnapping or abducting with intent to murder), 365 (kidnapping or abducting with intent to confine someone secretly and wrongfully), 201 (causing evidence to disappear), 506 (criminal intimidation), and 302 (murder) of the Indian Penal Code (IPC).
The bench headed by Justice Sahoo alsp stated that the trial court had ordered posting of the case for a hearing on the question of sentence on 21st October 2021, after issuing the order of conviction against the appellants. After hearing the prosecution and defence counsel, the trial court held the crime to be “rarest of rare” and awarded the severe punishment of death. The court added, “It is thus clear that the learned trial court after convicting the appellants has not given adequate opportunity to them to produce the mitigating circumstances in their favour nor it tried to collect the same nor discussed what the mitigating circumstances are available in favour of the appellants, but merely stated that the aggravating circumstances were outweighing the mitigating circumstances.”
The bench had earlier directed the Superintendent of Prison where the appellants were lodged for more than eight years to collect comprehensive data, including reports on their past, psychiatric state and post-conviction behavior, among other pertinent documents that would indicate mitigating factors. The Senior Superintendent of Circle Jail, Koraput, had filed an affidavit in pursuance of the above decision which included social reports of each appellant, health reports comprising of details about their mental health, and their behavior and conduct while behind bars, which were all considered to be satisfactory.
According to reports given by the jail superintendent, they behaved well during their imprisonment. They were polite, very disciplined, maintained order in the operations of the jail, and conducted themselves well with personnel and other inmates. During the entire period of confinement, no adverse reports were found, per the records. “It cannot be said that there is no possibility of the appellants being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative or in other words, life imprisonment would be completely inadequate and would not meet the ends of justice,” the court conveyed while considering the report of the authority and weighing the aggravating and mitigating circumstances.
It declared, “In view of the foregoing discussions and giving our anxious consideration to the facts and circumstances of the case, and striking a balance between the aggravating and mitigating circumstances, we are of the humble view that the death penalty would be disproportionate and unwarranted. Life imprisonment would be a more appropriate sentence.” As a result, the death sentences were converted to life in prison. It was stated that they would not be eligible for the benefits of commutation or remission under Sections 432 and 433 of the CrPC (Code of Criminal Procedure).
The bench added, “We are of the view that public opinion or the society’s expectation may be to confirm the death sentence awarded to the appellants since it is a case of triple murder and two of the deceased were ladies, but it must be remembered that such opinion or expectation is neither an objective circumstance relating to crime, nor the criminal, and therefore, we therefore are inclined to convert the sentence imposed on the appellant from death to life. However, taking into consideration the gruesome murder of two of his siblings and one nephew, we are of the view that the appellant deserves rigorous life sentence.”
According to Schedule-II of the Odisha Victim Compensation Scheme, the court granted a compensation amount of Rs. 10,00,000 for each death before rendering its decision. This amounts to a total of Rs. 30,00,000 which will be distributed equally among the informant, her sister and her brothers.
“The superstitions of witch-hunting are still alive in some parts of rural areas of our country mainly on account of lack of education and it leads to innocent individuals, often women, fall prey to the practice, publicly targeted, face persecution, torture and even gruesome murders on unfounded accusations of practicing witchcraft,” the court also expressed while addressing the matter.
Background of the case
On 16th September 2016, the informant, Melita Sabar, lodged an FIR against the appellants and a juvenile offender for killing her parents Asina Sabar and Amabaya Sabar along with her older sister, Ashamani Sabar, on the evening of 9th September. According to the complaint, she rushed to the scene when she heard that her parents and elder sister were tied and being tortured in a cowshed. She was also tied her to a stump after arriving there.
She added that the appellants had beaten her mother, father and older sister while accusing them of using sorcery to kill a few of the other villagers and also abused them. The appellants blamed them for continuous fever and ill-health of other locals. Shee disclosed that one of the appellants produced a syringe loaded with pesticides, stuck the needle into her older sister’s mouth, cheek, and eyes as well as threatened to kill her if she refused to tell the truth. Her parents were being brutally attacked by the other nine appellants with sticks.
The three individuals, who were already in a moribund state, were then attacked by the appellants as they led the corpses, one by one, to a cemetery as the severe assault had left them dead. She was ordered by the appellants to keep the information confiential. They also warned her of serious repercussions if she told the authorities about the gruesome incident. She learned that the appellants had exhumed the bodies and burned them, on 15th September.
Afterward, a charge sheet was filed against the appellants and Sections 302, 201, 342, and 506 read with Section 34 of the IPC and Section 4 of the Odisha Prevention of Witch Hunting Act, 2013 were invoked following the completion of the probe that followed the submission of the case.
More similar rulings by Indian courts
Notably, high courts have often delivered such sentences in cases of similar nature. The Telangana High Court changed a rape and murder conviction from death to life in prison in last December. 62-year-old Gaffar Ali was sentenced by the Sangareddy POCSO (Protection of Children from Sexual Offences) Special Court for the rape and murder of a 5-year-old girl after which he filed an appeal with the high court.
The prosecution established that on the day of the incident, the girl was last seen with Ghaffar Ali. Testimony and the postmortem report confirmed that he gave her a cold drink before the crime. She died of shock caused by the abuse, the report unveiled. The injuries to the cheek, eye, neck, and genital parts of the child were also highlighted. These were reportedly inflicted when he gagged her mouth during the rape. Forensic findings and CCTV footage were other evidence supporting the prosecution case.
However, the court declared, “While the evidence unequivocally proves the crime, absence of specific aggravating factors such as a deliberate intent to murder and Ghaffar Ali’s lack of a prior criminal history, led to the reduction in sentence.” The court, though commuting the death sentence, stated that Ali would not be released on any form of parole during the first 15 years of his imprisonment. Pardon, remission, or parole had all been categorically ruled out by the judgment.
Chhattisgarh High Court commuted sentences in two separate cases
“These are the incriminating circumstances, but there is no evidence on record that the appellant cannot be reformed or rehabilitated as at the time of the offense he was aged about 29 years and he is a member of the Other Backward Class (OBC), thereby he belongs to the backward community and his chances of being reformed or rehabilitated cannot be ruled out,” the Chhattisgarh High Court pronounced in December of last year, while overturning the capital punishment awarded to Dipak Baghel for committing rape and murder of a 7-year-old girl in the year 2021.
The court deemed him guilty of rape and murder after considering all available evidence, DNA reports and testimony of the victim’s family. “Thus, after appreciating the entire ocular and medical evidence on record, we do not find any illegality in appreciation of oral, medical, and circumstantial evidence or arriving at a conclusion as to the guilt of the appellant by the trial Court warranting interference by this court and we accordingly hereby confirm the conviction of the appellant recorded under Section 302 of the IPC.”
However, it also addressed the arguments regarding the capital punishment stating that the trial court was wrong in the imposition of the death penalty on the appellant on the same day. “The trial court has not taken into consideration the probability of the appellant being reformed and rehabilitated and has only taken into consideration the crime and the manner in which it was committed and has not given the effective opportunity of hearing on the question of sentence to the appellant. No evidence was brought on record on behalf of the prosecution to prove to the court that the appellant cannot be reformed or rehabilitated, by producing material about his conduct in jail, and no opportunity of hearing was given to the appellant to produce evidence in that respect.”
In December 2024, the same court commuted the death sentence given to a 34-year-old man by the lower court, following his conviction for killing his wife and three little children to life in prison. “Capital punishment can only be awarded in very exceptional and rarest of the rare cases, which is lacking in the present case. Accordingly, the death sentence awarded to the appellant is commuted to imprisonment for life, with a directive that the life sentence must extend to imprisonment for the remainder of the appellant’s natural life,” it stated.
Umend Kenwat strangled his wife, Sukrita Kewat, along with their three children, Khushi Kenwat (5), Lisa Kenwat (3) and Pawan Kenwat (18 months), using a rope because he had some reservations about her character. He then attempted to hang himself, but the rope broke and he fell after which he went to the police station to report the incident.
The court identified the suspicion of the character of his wife as a mitigating element for the killings of his wife and three young kids. He attempted to take his own life, too. All the evidence presented in this case were regarded circumstantial.
The court stated, “Though it shocks the conscience of society at large, yet, in the facts and circumstances of the case, considering the young age of the appellant, upon thoughtful consideration, we are of the view that the extreme sentence of the death penalty is not warranted. This case does not qualify as the ‘rarest of rare,’ where the imposition of the death penalty is justified. In our opinion, life imprisonment is adequate to meet the ends of justice. Accordingly, we direct the commutation of the death sentence to life imprisonment. Furthermore, we direct that the life sentence must extend to imprisonment for the remainder of the appellant’s natural life.”
Supreme Court upheld Bombay High Court’s order commuting death penalty to life
Due to an excessive delay in their execution, the Bombay High Court decided to commute the death sentence of two convicts in the 2007 Wipro BPO employee (22) gang rape and murder to “life term for a period of 35 years.” The decision was then maintained by the Supreme Court of India in December 2024. On 21st June 2019, the high court ruled that the execution of Purushottam Borate and Pradeep Kokade shall be postponed until further directives.
“We find that the delay in executing the death penalty in the present case was undue, inordinate and unreasonable. We find that there has been undue and unexplained delay by both the state and central government in processing the mercy petitions,” the high court stated. It further added, Here we have to consider a case of two convicts who have to be hanged. When the protection of Article 21 of the Constitution of India (Right to life and personal liberty) is at stake then the Executive, Court of Law or the Governor and President of India stand at the same pedestal.”
“Thus, delay by any arm of the state or the central government would be against the fundamental rights of the convicts. It is clear that the actual execution of the death penalty is at the hands of the state government. The state government has to fix a date and obtain death warrant,” the court highlighted and expressed that merely writing letters to the sessions court asking for a date to be set for the execution of the death penalty does not amount to compliance. “In such a situation, we commute the death penalty to life term for a period of 35 years considering the time already spent by the petitioners in jail,” the court concluded.
Madhya Pradesh High Court commuted death sentence
Last November, the Madhya Pradesh High Court commuted the death sentence of a man convicted of raping and killing a 12-year-old girl to life imprisonment. It had noted that while a life sentence lead to retribution, the death penalty was “unique in its absolute rejection of the potential of convict to rehabilitate and reform.” On 10th July 2019, Vishal Bhamore was found guilty over a month later, after a girl went missing while going to purchase gutka for her father from a nearby grocery shop in her neighborhood. A missing persons report submitted on 9th June.
The next day, her body was discovered in a nearby drain, whose further medical reports revealed that she was raped. The court pointed out that the Supreme Court had decided that, to apply the death penalty, a case must first obviously fall under the “rarest of rare,” and second, the alternative of life in prison must be undeniably barred. “In life sentences, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convicts to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end to anything to do with the life. This is the big difference between two punishments,” it voiced.
The court further added, “We find that there is no criminal history of the appellant. The learned trial court has not taken this aspect into consideration. It has only said that since such offences are on rise against minor daughters, which are indicative of a perverted mind, then with a view to save the dreams of minor children, conclusive punishment is required to be given to such convicts.”
It is important to remember that the above-cited cases only represent the outer shell of an even larger issue, as Indian courts have made numerous such judgments in many grave and critical cases.
